REGULATORY POWERS (STANDARD
PROVISIONS) BILL 2012

Outline

The Regulatory Powers (Standard Provisions) Bill 2012 provides for
a framework of standard regulatory powers exercised by agencies
across the Commonwealth. The Bill would only apply to regulatory
schemes that trigger its provisions through amendment of existing
legislation or the introduction of new legislation. The key
features of the Bill include monitoring and investigation powers as
well as enforcement provisions through use of civil penalty,
infringement notices, enforceable undertakings and
injunctions.

The monitoring powers in the Bill are based on standard powers that
can already be found across Commonwealth laws. The Bill provides
for monitoring whether legislation is being complied with, or that
information given to the Commonwealth in compliance, or purported
compliance, is correct.

The investigation powers contained in the Bill are also commonly
found across the statute book. The powers allow investigation of
suspected contraventions of offences and civil penalty provisions.
Investigation powers provided in the Bill include powers to search
and seize evidential material as well as inspect, examine, measure
and test any thing on the premises. The Bill also provides for the
use of civil penalty provisions, infringement notices and
injunctions to enforce provisions, and the acceptance and
enforcement of undertakings relating to compliance with
provisions.

Once enacted the Act will be rolled out progressively.
Following passage of the Bill, new Acts or Regulations that require
investigation or enforcement powers of the kind available under the
Regulatory Powers Bill would be drafted to trigger the relevant
provisions.

Overtime, where substantial amendment is required to existing
investigation and enforcement regimes in current Acts and
Regulations, those regimes will be reviewed and, if appropriate,
amended to instead trigger the relevant provisions in the
Regulatory Powers Bill.

For the regulatory provisions in the Bill to be activated, new or
existing legislation would need to be amended to remove existing
regulatory powers and incorporate the Regulatory Powers
Bill’s provisions. This also will mean that future
legislation incorporating provisions in this Bill will be subject
to Parliamentary scrutiny. This ensures that distinct
assessments of human rights engagement and compatibility will be
apparent in the drafting and scrutiny process.

In some cases the powers contained in this Bill will not be
appropriate and/or sufficient for some regulatory agencies
requirements. For example, law enforcement agencies that deal
with national security will still require their own specialised
powers. Similarly, some regulatory agencies may have specific
requirements not met in this Bill and consequently may decide to
not trigger the Bill’s provisions. Alternatively,
agencies may choose to only trigger certain provisions that are
relevant to carrying out their regulatory
functions.

The provisions of
the Bill deal with:

(a) general
introductory provisions (Part 1)

(b)
monitoring whether provisions of an Act have been, or are being
complied with and monitoring whether information given in
compliance, or purported compliance, with provisions of an Act is
correct (Part 2)

(f) the
acceptance and enforcement of undertakings relating to compliance
with provisions (Part 6)

(g)
the use of injunctions to enforce provisions (Part 7), and

(h)
general provisions relating to regulations (Part 8)

First Parliamentary Counsel has issued a Drafting Direction in
respect of the Regulatory Powers (Standard Provisions) Bill 2012 to
Parliamentary Drafters. It covers a wide range of topics related to
drafting regulatory powers. All drafters are required to
comply with the drafting directions to ensure a consistent approach
is taken to amendments. It is recommended that the Bill be
read in association with its Drafting Direction.

Commonwealth departments and agencies that make and administer laws
with regulatory powers were consulted on the terms of this Bill in
early July 2012.

Financial
Impact Statement

There is no
financial impact associated with this Bill. However, this Bill will
reduce drafting and scrutiny time for future Commonwealth laws.

Statement
of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011

This Bill is compatible with the human rights and freedoms
recognised or declared in the international instruments listed in
section 3 of the Human Rights (Parliamentary Scrutiny) Act
2011 .

Overview of the Bill

The Regulatory Powers (Standard Provisions) Bill 2012 (the Bill)
provides a framework of standard regulatory powers which, when
enacted, would be applied to Commonwealth Acts and regulations in a
staged approach. To activate the Bill’s provisions, new or
existing Commonwealth laws must expressly apply the relevant
provisions and specify other requisite information such as persons
who are authorised to exercise the applicable
powers.

This Bill arises out of the Australian Government’s Clearer
Laws project, which aims to reduce complexity on Commonwealth
legislation by reducing its volume and increasing the consistency
and coherence of laws across the statute book.

The provisions of the Bill predominantly deal with monitoring and
gathering evidence powers designed to determine compliance with
provisions of a triggering Act or regulation. The Bill also
provides for the use of civil penalties, infringement notices and
injunctions to enforce provisions and the acceptance and
enforcement of undertakings relating to compliance with
provisions.

Human rights implications

As a law of general application, the human rights implications of
its provisions will need to be addressed on a case-by-case basis
whenever the provisions are activated.

The Bill engages the following human rights:

The protection against arbitrary interference with privacy;
and

The right to a fair trial.

The right to privacy and reputation

Article 17 of the ICCPR prohibits arbitrary or unlawful
interference with an individual’s privacy, family, home or
correspondence, and protects a person’s honour and reputation
from unlawful attacks. This right may be subject to permissible
limitations where those limitations are provided by law and
non-arbitrary. In order for limitations not to be arbitrary,
they must be aimed at a legitimate objective and are reasonable,
necessary and proportionate to that objective.

The
obligations placed on participants in Commonwealth regulatory
schemes provided in the Bill relate to:

The Bill protects against arbitrary abuses of power as the entry,
monitoring, search, seizure and information gathering powers
provided in it are conditional upon consent being given by the
occupier of the premises or prior judicial authorisation. Where
entry is based on the consent of the occupier, consent must be
informed and voluntary and the occupier of premises can restrict
entry by authorised persons to a particular period. Additional
safeguards are provided through provisions requiring authorised
persons and any persons assisting them to leave the premises if the
occupier withdraws their consent.

The Bill specifies that an issuing officer of a warrant to enter
premises for the purpose of monitoring or investigation must be a
judicial officer. The Bill also provides limits on the issuing of a
monitoring or investigation warrant. In the case of an
investigation warrant, for example, an issuing officer may issue an
investigation warrant only when satisfied, by oath or affirmation,
that there are reasonable grounds for suspecting that there is, or
may be within the 72 hours, evidential material on the premises. An
issuing officer must not issue a warrant unless the issuing officer
has been provided, either orally or by affidavit, with such further
information as they require concerning the grounds on which the
issue of the warrant is being sought. Such constraints on this
power ensure adequate safeguards against arbitrary limitations on
the right to privacy in the issuing of
warrants.

An authorised person cannot enter premises unless their identity
card or a copy of the warrant under which they are entering is
shown to the occupier of the premises. This provides for the
transparent utilisation of the Bill’s powers and mitigates
arbitrariness and risk of abuse.

These powers are reasonable, necessary and proportionate to achieve
a legitimate objective. Adequate safeguards and limitations on the
use of regulatory powers in the Bill ensures that such lawful
interferences are not arbitrary or at risk of abuse.

The right to a fair and public hearing

Article 14 of the ICCPR ensures that everyone shall be entitled to
a fair and public hearing by a competent, independent and impartial
tribunal established by law.

The Bill engages the right to a fair and public hearing through the
creation of an infringement notice scheme. An infringement notice
can be issued by an infringement officer for contraventions of a
strict liability offence provision or a civil penalty provision
that is enforceable under the Bill. The Bill ensures against
arbitrariness or abuses of power through limitations as to who can
issue an infringement notice. The Bill limits this exercise of
power to an infringement officer who must be an APS employee or an
officer of a State or Territory.

The right of a person to a fair and public hearing by a competent,
independent and impartial tribunal is preserved by the Bill as its
provisions allow a person to elect to have the matter heard by a
court rather than pay the amount specified in the notice.
Additionally, the Bill outlines that this right must be stated in
an infringement notice issued to a person, ensuring that a person
issued with an infringement notice is aware of their right to have
the matter heard by a court.

These powers are reasonable, necessary and proportionate. The Bill
ensures that relevant courts have sufficient oversight to ensure
against arbitrariness or abuses of power. Regulatory functions and
powers in the issuing of infringement notices are limited to
government officers and a person can elect to have the matter heard
by a court.

Conclusion

The Bill is compatible with human rights because to the extent that it may limit human rights,
those limitations are reasonable, necessary and
proportionate. Furthermore, as the Bill is a Bill of general
application, it will not engage any limitations on human rights
until the Bill’s provisions are activated. When this occurs,
new or existing legislation will need to include its own assessment
of its engagement with human rights to ensure its compatibility.
This therefore provides additional protections to human rights and
freedoms and ensures that those clauses that new or existing
legislation trigger in the Bill are necessary, reasonable and
proportionate for that agency to carry out its
functions.

NOTES ON
CLAUSES

Part 1—Preliminary

Clause 1: Short title

1.
Clause 1 establishes the short title of the Act, the
Regulatory Powers (Standard Provisions) Act
2012 .

Clause 2: Commencement

2.
Clause 2 sets the commencement dates for various sections of the
Bill.

Clause 3: Simplified outline

3.
Clause 3 provides an overview of the Bill, broadly outlining the
objects of the Bill and the means by which they are achieved, as
well as introducing the issues covered in each Part of the
Bill. Clause 3 also makes clear that the monitoring,
investigation and enforcement powers outlined in the Bill do not
stand alone and must be activated by another Act or regulation for
the provisions in this Bill to apply.

Clause 4: Dictionary

4.
Clause 4 contains a dictionary to assist interpretation and
implementation of the Bill by defining the meaning of certain terms
used in the Bill.

Clause 5: Contravening offence and civil penalty
provisions

5.
Clause 5 clarifies that, for a triggering Act or regulation, a
person is liable for criminal or civil penalties if the person
contravenes the obligations set out in the triggering Act or
regulation.

6.
To remove any doubt, clause 5 provides that breaching these
obligations constitutes a criminal offence or gives rise to civil
liability.

Clause 6: Binding the Crown

7.
Clause 6 ensures that this Bill binds the Crown in its various
capacities.

Part 2—Monitoring

Division 1—Outline and operation of this
Part

Clause 7: Simplified outline

8.
Clause 7 provides an outline of Part 2 of the Bill, which provides
the powers and processes by which compliance with the Bill may be
investigated.

9.
Part 2 provides also that a triggering Act or regulation must make
a provision or information subject to monitoring under this Part
for this Part to operate.

Clause 8: Purpose and operation of this
Part

10.
Clause 8 outlines the purpose of this Part which is to create a
framework for monitoring compliance of provisions of an Act or
legislative instrument and whether information given in compliance,
or purported compliance, with a provision of an Act or legislative
instrument is correct.

11.
Subclause 8(2) clarifies that an Act or legislative instrument must
either make a provision or information subject to monitoring under
this Part for this Part to operate.

Clause 9: Provisions subject to monitoring

12.
Clause 9 clarifies that a provision of an Act or legislative
instrument is subject to monitoring under this Part if a triggering
Act or regulation provides so.

Clause 10: Information subject to
monitoring

13.
Clause 10 clarifies that information given in compliance, or
purported compliance, with a provision of an Act or legislative
instrument is subject to monitoring if a triggering Act or
regulation provides so.

Clause 11: Related provisions

14.
Clause 11 provides that a provision is related to an information or
a monitored provision, if a triggering Act or regulation provides
that the provision is so related.

Clause 12: Authorised applicant

15.
Clause 12 provides that an applicant for the purpose of exercising
powers or performing incidental functions or duties is authorised
if a triggering Act or regulation provides that the person is an
authorised applicant in relation to that provision.

16.
Subclause 12(3) provides that a triggering Act or regulation may
nominate a specified class, or provide authority to another person
to specify that a person or specific class, is an authorised
applicant for the purposes of this Part.

Clause 13: Authorised person

17.
Clause 13 clarifies that a person is an authorised person for the
purpose of exercising various powers or performing incidental
functions or duties under this Part if a triggering Act or
regulation provides that the person is an authorised person in
relation to that provision.

18.
Subclause 13(3) provides that a triggering Act or regulation may
nominate a specified class, or provide authority to another person
to specify that a person or specific class, is an authorised person
for the purposes of this Part.

19.
The Drafting Direction further stipulates that a person should not
be specified as an authorised person unless the person is an APS
employee, statutory office holder, State or Territory officer, a
member or employee of a prescribed Agency for the purposes of the
Financial Management and Accountability Act 1997 or a
Commonwealth authority for the purposes of the Commonwealth
Authorities and Companies Act 1997 .

Clause 14: Identity card

20.
An authorised person must be able to identify themselves at all
times when carrying out powers under this Bill (clause 36).
Clause 14 provides that an identity card is one issued to an
authorised person under clause 36 by the relevant chief executive
in relation to that provision or information.

Clause 15: Issuing officer

21.
Clause 15 provides that a judicial officer is an issuing officer
for the purposes of exercising various powers, performing
incidental functions or duties under this Part if a triggering Act
or regulation provides that the judicial officer is an issuing
officer in relation to that provision.

22.
Subclause 15(3) provides that an Act or regulation may nominate a
specified class, or provide authority to another person to specify
that a person or specific class, is an issuing officer for the
purposes of this Part.

Clause 16: Relevant chief executive

23.
Clause 16 provides that a person is
the relevant chief executive for the purpose of exercising various
powers, performing incidental functions or duties under this Part
if a triggering Act or regulation provides so.

24.
Subclause 16(3) provides that an Act or regulation may nominate a
specified class, or provide authority to another person to specify
that a person or specific class, is the relevant chief executive
for the purposes of this Part.

Clause 17: Relevant court

25.
Clause 17 provides that the relevant court
is the court that is relevant in relation to matters arising under
the exercise of these powers if the triggering Act or regulation
provides so.

Clause 18: Matters provided for by legislative
instrument

26.
Clause 18 provides that, only if the power to do so is given under
another Act, can a legislative instrument provide that a provision
is enforceable under this Part or that a person is an authorised
person or a relevant chief executive under this Part.

Division 2—Powers of authorised persons

Subdivision A—Monitoring powers

Clause 19: Authorised person may enter premises by consent or
under warrant

27.
In addition to inspection powers, Clause 19 provides that
authorised persons have additional monitoring powers that may be
exercised with consent or under a monitoring warrant. The
occupier of premises (defined by clause 4) is not required to
give consent to an authorised person’s entry or exercise of
monitoring powers. If consent is granted, the occupier
remains free to subsequently withdraw that consent at any time and
an authorised person must leave the premises if consent is
withdrawn, or otherwise ceases to have effect.

Clause 20: Monitoring powers of authorised
persons

28.
Clause 20 sets out the authorised person’s monitoring powers
under a warrant or consent, which permit an authorised person to,
among other things, search premises, bring equipment and materials
onto the premises, measure or test any thing on the premises,
photograph things or make copies of documents, or operate
electronic equipment.

Clause 21: Operating electronic equipment

29.
Clause 21 provides detail about an authorised person’s power
to operate electronic equipment when entering premises with consent
or under warrant. In this context, electronic equipment primarily
refers to, but is not limited to, data storage equipment such as
computers that may have information relevant to monitoring
compliance with the Bill. This power is necessary to ensure an
authorised person can obtain access to electronic records that may
indicate whether the Act or regulation is being complied with or
whether information provided under the Act or regulation is
correct.

30.
An authorised person’s power to operate electronic equipment
extends to copying data from the electronic equipment onto storage
devices. However, an authorised person may only operate electronic
equipment if he or she reasonably believes this can occur without
damaging the equipment. Nothing in clause 21 affects any liability
or indemnity a court may find for damage to electronic
equipment.

Clause 22: Securing electronic equipment to obtain expert
assistance

31.
Clause 22 permits an authorised person to secure electronic
equipment under a monitoring warrant for up to 24 hours to provide
the authorised person time to engage expert assistance to operate
electronic equipment. As an authorised person may not be
accompanied by an expert assistant when exercising monitoring
powers, clause 22 permits an authorised person to secure equipment
for up to 24 hours (longer on application - see subclause
22(5) in order to engage assistance.

32.
An authorised person may only secure equipment if the authorised
person has reasonable grounds to believe relevant data on the
equipment may be destroyed or altered if the equipment is not
secured. Subclause 22(5) provides for an extension of time in
these circumstances.

33.
Clause 22(6) ensures that occupiers of premises, or their apparent
representatives, are informed of an authorised person’s
intention to apply for an extension in the securing of equipment.
This provides a means by which an occupier can challenge an
application for extension if they so choose.

Clause 23: Securing evidence of the contravention of a
related provision

34.
The powers of an authorised person under a monitoring warrant do
not extend to seizing evidence. Monitoring powers are available for
the purpose of determining whether an Act or regulation is being
complied with, whereas seizing evidence is a more coercive power
and should be exercisable only where a issuing officer is satisfied
that an authorised person has in fact located evidence of a breach
of the Act or regulation.

35.
However, to ensure that evidence located during an inspection is
not disposed of before an authorised person has the opportunity to
authorise seizure, clause 23 grants an authorised person the power
to secure any thing she or he reasonably believes provides evidence
of a contravention of an Act or regulation for up to 24 hours. An
issuing officer may extend the period beyond 24 hours (see
subclause 23(2).

Clause 24: Persons assisting authorised
persons

36.
Authorised persons may require assistance when carrying out their
functions and clause 24 establishes clear legislative basis for
such assistance. A person assisting an authorised person has the
power to enter premises and assist an authorised person with any
duties or powers to determine whether the Act is complied with. Any
action validly taken in respect of this power is taken under clause
24 to be done by the authorised person.

Subdivision B—Powers of authorised persons to ask questions
and seek production of documents

Clause 25: Authorised persons may ask questions and seek
production of documents

37.
Clause 25 provides that when an authorised person enters premises
with the consent of the occupier, an authorised person may ask the
occupier to answer any questions or produce documents relating to
the operation of the provision or the information.

38.
If entry is by way of a monitoring warrant, subclause 25(3)
provides that an authorised person may require any person on the
premises to answer any questions or produce documents relating to
the operation of the provision or the information.

39.
Subclause 25(4) provides a defence of non-possession of the
documents or the occupier having taken reasonable steps to locate
the required documents without success.

40.
Subclause 25(5) clarifies that failure to comply with a requirement
under subclause 25(3) carries a penalty of 30 penalty units. This
clause is not intended as an abrogation of the privilege against
self-incrimination.

Division 3—Obligations and incidental powers of authorised
persons

Clause 26: Consent

41.
Entry into premises to exercise various powers under Part 2
Division 2 may be exercised with the consent of the occupier.
Clause 26 sets out the parameters for valid consent, noting that
consent must be informed and voluntary and that an occupier remains
free to withdraw consent at any time or to consent to entry only
during a certain time period.

42.
Clause 26(6) provides that, while it is preferable that an
authorised person show their identity card before entering
premises, an identity card must be presented to the occupier of the
premises upon entry, or as soon as is reasonably practical, after
entering the premises.

Clause 27: Announcement before entry under
warrant

43.
While certain powers to inspect public premises may be exercised
without announcement or identification, clause 27 requires an
authorised person to identify him or herself in most circumstances
and announce the purpose of the visit before entering under a
warrant if the occupier of the premises or that person’s
apparent representative is present. This ensures that an occupier
of premises who is present is made aware before an authorised
person exercises monitoring or investigation powers under
warrant.

Clause 28: Authorised person to be in possession of
warrant

44.
Clause 28 requires an authorised person to be in possession of the
warrant or a copy of the warrant whilst executing a monitoring
warrant.

Clause 29: Details of the warrant etc. to be given to the
occupier

45.
Clause 29 requires an authorised person to provide a copy of a
warrant to the occupier of premises entered under warrant, or an
occupier’s apparent representative, if either are present,
and to inform the person of their rights and obligations in
relation to a warrant. This obligation ensures that occupiers and
representatives that are present when a warrant is executed are
granted an opportunity to examine the warrant and are explicitly
informed about their rights and obligations (see clauses 31 and 32
for rights and obligations).

Clause 30: Compensation for damage to electronic
equipment

46.
Clause 30 provides that a person is entitled to compensation for
damage to electronic equipment operated during the course of an
inspection. It recognises the fact that powers to operate
electronic equipment do not excuse damage caused by a lack of
care.

Division 4—Occupier’s rights and
responsibilities

Clause 31: Right to observe execution of
warrant

47.
Clause 31 provides the right for occupiers of premises and their
apparent representatives, who are present when a warrant is
executed, to observe the execution of any warrant on their
premises. This right does not limit how the warrant may be executed
or require an occupier to witness all of an authorised
person’s activities, but it does recognise that a person
should not be excluded during the execution of a warrant unless
they attempt to obstruct the inspection.

48.
Occupiers and representatives that are present when a warrant is
executed must be made aware of their rights under clause
31.

Clause 32: Responsibility to provide facilities and
assistance

49.
Clause 32 imposes an obligation on occupiers of premises, and their
apparent representatives, to provide reasonable facilities and
assistance required to effectively carry out warrant powers. This
obligation recognises that monitoring and investigation powers are
authorised by issuing officers for the purpose of determining
whether laws are being complied with and should not be obstructed.
Failure to provide reasonable assistance and facilities when
requested carries a penalty of 30 penalty units.

50.
Occupiers and representatives that are present when a warrant is
executed must be made aware of their obligations under clause
31.

Division 5—Monitoring warrants

Clause 33: Monitoring warrants

51.
An authorised applicant’s monitoring powers are exercisable
with consent or under a monitoring warrant obtainable under clause
33.

52.
To ensure warrants are issued and exercised only in appropriate
situations, clause 33 details the procedure by which an authorised
applicant may obtain a warrant from an issuing officer. Subclause
33(4) also sets out the mandatory content of a monitoring
warrant.

Division 6—Extension of periods in which things
secured

Clause 34: Extension of periods in which things
secured

53.
Clause 34 outlines the situations in which an issuing officer may
grant an extension to the 24 hour period in which things can be
secured by authorised persons. An extension of the period may, by
order, be granted if further information is provided to the issuing
officer demonstrating that an extension is necessary to avoid a
thing being destroyed, altered, lost, concealed, altered or
interfered with.

54.
Clause 34(4) outlines what must be included in an order extending
the period in which a thing is secured.

Division 7 - Powers of issuing officers

Clause 35: Powers of issuing officers

55.
Clause 35 provides that the power to issue warrants or exercise
other powers under the Ac is conferred on an issuing officer who
exercises the power in their personal capacity and not as a
representative of the court. However, issuing officers are granted
immunities of the court and members of the court when exercising
these powers. This recognises that issuing a warrant is an
executive function and not an exercise of judicial
power.

Division 8 - Identity cards

Clause 36: Identity Cards

56.
Authorised persons are required to return identity cards when they
cease their role as authorised persons. Clause 36 requires the
relevant chief executive to issue all authorised persons with photo
identity cards an identity card to an authorised person in the form
provided under subclause 36(2). The identity
cards must be carried by authorised persons at all times they are
acting in that official capacity (subclause 36(6)).

57.
Clause 36(3) requires authorised persons to return identity cards
when they cease their role as authorised persons. This
obligation is supported by an offence of strict liability
punishable by one penalty unit for authorised persons who fail to
return identity cards within 14 days after ceasing that role unless
the identity card is lost or destroyed.

Part 3—Investigation

Division 1—Outline and operation of this
Part

Clause 37: Simplified outline

58.
Clause 37 provides a simplified outline of Part 3 which creates a
framework for gathering material relating to the contravention of
offences and civil penalty provisions and addresses investigation
and entry into premises.

59.
This clause also requires that a triggering Act or regulation must
make an offence or civil penalty provision subject to investigation
under this Part for this Part to operate.

Clause 38: Purpose and operation of this
Part

60.
Clause 38 outlines the purpose of this Part which is to create a
framework for gathering material relating to the contravention of
offences and civil penalty provisions.

61.
Subclause 38(2) requires that an offence or civil penalty provision
must be made subject to investigation under this Part for this Part
to operate.

Clause 39: Provisions subject to
investigation

62.
Clause 39 provides that an offence or civil penalty provision under
a triggering Act or regulation is subject to investigation under
this Part if the triggering Act or regulation provides
so.

Clause 40: Evidential material

63.
Clause 40 clarifies what constitutes evidential material. This
removes doubt about the nature of evidential material that may be
searched for or seized when authorised persons enter
premises.

Clause 41: Related provisions

64.
Clause 41 provides that, for the purposes of this Part, a provision
is related to evidential material if a triggering Act or regulation
provides so.

Clause 42: Authorised applicant

65.
Clause 42 clarifies that a person is an authorised applicant for
the purpose of exercising various powers, performing incidental
functions or duties under this Part if a triggering Act or
regulation provides so.

66.
Subclause 42(3) provides that a triggering Act or regulation may
nominate a specified class, or provide authority to another person
to specify that a person or specific class, is an authorised
applicant for the purposes of this Part.

Clause 43: Authorised person

67.
Clause 43 clarifies that a person is an authorised person for the
purpose of exercising various powers, performing incidental
functions or duties under this Part if a triggering Act or
regulation provides that the person is an authorised person in
relation to that provision.

68.
Subclause 43(3) provides that a triggering Act or regulation may
nominate a specified class, or provide authority to another person
to specify that a person or specific class, is an authorised person
for the purposes of this Part.

Clause 44: Identity card

69.
An authorised person must be able to identify themselves at all
times when carrying out powers under this Bill (clause 36).
Clause 44 provides that an identity card is one issued to an
authorised person under clause 36 by the relevant chief executive
in relation to that evidential material.

Clause 45: Issuing officer

70.
Clause 45 clarifies that a person is an issuing officer for the
purpose of exercising various powers under this Part if a
triggering Act or regulation provides so.

71.
Subclause 45(3) provides that a triggering Act or regulation may
nominate a specified class, or provide authority to another person
to specify that a person or specific class, is an issuing officer
for the purposes of this Part.

Clause 46: Relevant chief executive

72.
Clause 46 clarifies that a person is the relevant chief executive
for the purpose of exercising various powers, performing incidental
functions or duties under this Part if a triggering Act or
regulation provides so.

73.
Subclause 46(3) provides that an Act or regulation may nominate a
specified class, or provide authority to another person to specify
that a person or specific class, is the relevant chief executive
for the purposes of this Part.

Clause 47: Relevant court

74.
Clause 47 provides that the relevant court is the court that is
relevant in relation to matters arising under the exercise of these
powers provided that a triggering Act or regulation provides
so.

Clause 48: Matters provided for by legislative
instrument

75.
Clause 48 provides that, only if the power to do so is given under
another Act, can a legislative instrument provide that a provision
is enforceable under this Part or that a person is an authorised
person, a relevant chief executive or issuing officer under this
Part.

Division 2—Powers of authorised persons

Subdivision A—Investigation powers

Clause 49: Entering premises by consent or under a
warrant

76.
Similarly to monitoring powers, an authorised person may enter
premises to exercise investigation powers by consent or under a
warrant. However, an authorised person may only enter premises to
exercise investigation powers if the authorised person has
reasonable grounds to suspect the premises contain evidence of a
contravention of the triggering Act or legislative material
(evidential material), even if the occupier of the premises
consents to entry. An authorised person must identify herself or
himself to the occupier of the premises before entering premises
under warrant.

Clause 50: General investigation powers

77.
If an authorised person enters premises by way of an
occupier’s consent, clause 50 permits the authorised person
to search the premises for the evidential material the authorised
person suspects is on the premises.

78.
If an authorised person enters premises under an investigation
warrant, investigation powers extend to seizing evidential
material; inspecting, testing and copying evidential material; and
the power to take equipment necessary to exercise investigation
powers onto the premises, or operate electronic equipment found of
the premises. It is appropriate to limit the extended range of
investigation powers to cases where a warrant is issued to ensure
the judiciary maintains oversight of these investigation
powers.

Clause 51: Operating electronic equipment

79.
To ensure an authorised person is able to obtain access to
electronic records that may contain evidential material, clause 51
empowers an authorised person to operate any electronic equipment
on premises that the authorised person suspects contains evidential
material, including computers and other electronic storage devices.
These powers are available whether the authorised person enters
under consent or an investigation warrant.

80.
In addition to the power to operate electronic equipment, clause 51
grants an authorised person the power to put the evidential
material in documentary form (i.e. print the material) and to make
electronic copies of the evidential material, and the power to
remove the documents or copies from the premises. These powers are
available whether the authorised person enters under consent or an
investigation warrant. If an authorised person enters the premises
under a warrant, he or she may also seize electronic equipment and
storage devices that are found to contain evidential material, but
only if it is not practical to make electronic copies or put the
evidence in documentary or if possessing the electronic equipment
or storage device would constitute an offence by the occupier of
premises.

81.
Electronic equipment and storage devices may only be operated if
the authorised person reasonably believes this can be done without
damaging the equipment or device.

Clause 52: Securing electronic equipment to obtain expert
assistance

82.
Clause 52 permits an authorised person to secure electronic
equipment for up to 24 hours to provide the authorised person time
to engage expert assistance to operate electronic
equipment.

83.
Clause 52 supports an authorised person’s powers to operate
electronic equipment by permitting an authorised person to secure
electronic equipment in order to engage expert assistance to
operate the electronic equipment - where she or he believes
that expert assistance is required. As an authorised person
may not be accompanied by an expert assistant when exercising
monitoring powers, clause 52 permits an authorised person to secure
equipment for up to 24 hours (longer on application - see
subclause 52(5) in order to engage assistance.

84.
An authorised person may only secure equipment if the authorised
person has reasonable grounds to believe relevant data on the
equipment may be destroyed or altered if the equipment is not
secured. Subclause 52(5) provides for an extension of time in these
circumstances.

85.
Clause 52(6) ensures that occupiers of premises, or their apparent
representatives, are informed of an authorised person’s
intention to apply for an extension in the securing of equipment.
This provides a means by which an occupier can challenge an
application for extension if they so choose.

Clause 53: Seizing evidence of related
provisions

86.
Investigation warrants must specify the evidential material
the authorised person reasonably suspects is located on premises.
This is appropriate to ensure seizure powers are used in a targeted
and considered manner.

87.
However, clause 53 permits an authorised person to seize evidential
material, when entering premises under an investigation warrant, of
a kind not specified in the warrant if it is found during a search
and it provides evidence of a contravention of the triggering Act
or legislative instrument. This is to ensure that the appropriate
requirement to target search and seizure warrants does not unduly
prevent the gathering of evidence of related offences that were not
anticipated when the warrant was issued. Warrants should only be
available where there are reasonable grounds to suspect an offence
has been or will be committed but this requirement does not exclude
evidence of other offences that is discovered during a
search.

Clause 54: Persons assisting authorised persons

88.
Clause 54 provides that an authorised person can exercise
investigation powers with an assistant.

89.
Subclause 54(5) states that a direction under paragraph 54(2)(c) is
not a legislative instrument. This is to assist readers to
understand the status of directions under paragraph 54(2)(c), which
do not meet the meaning of legislative instrument under section 5
of the Legislative Instruments Act 2003 , and is not intended
as an exemption from that Act.

Subdivision B—Powers to ask questions and seek production of
documents

Clause 55: Asking questions and seeking production of
documents

90.
Clause 55 provides an authorised person with powers, additional to
those previously described as monitoring or investigation powers,
to request information or documents relevant to the authorised
person’s entry to the premises to search for evidential
material.

91.
An authorised person who enters premises with the consent of the
occupier is entitled to request information or documents from the
occupier, although there is no obligation for the occupier to grant
the request.

92.
An authorised person who enters premises under a warrant may
require any person on the premises to provide information or
documents. Failure to comply with a requirement to provide
information or documents without reasonable excuse (e.g. requested
information or documents are not in the person‘s possession,
or would tend to incriminate the person) is an offence that carries
a penalty of 30 penalty units. Clause 55 does not impinge on the
privilege against self-incrimination and a person is not required
to answer questions or produce documents if the material would tend
to incriminate them.

Division 3—Obligations and incidental powers of authorised
persons

Clause 56: Consent

93.
Entry into premises to exercise investigation powers may be
exercised with the consent of the occupier. Clause 56 sets out the
parameters for valid consent, noting that consent must be informed
and voluntary and that an occupier remains free to withdraw consent
at any time or to consent to entry only during a certain time
period.

Clause 57: Announcement before entry under
warrant

94.
While certain powers to inspect public premises may be exercised
without announcement or identification, clause 57 requires an
authorised person to identify him or herself in most circumstances
and announce the purpose of the visit before entering under a
warrant if the occupier of the premises or that person’s
apparent representative is present. This ensures that an occupier
of premises who is present is made aware before an authorised
person exercises investigation powers under warrant.

95.
In some situations, the requirement to identify and announce the
purpose of the visit could result in serious detriment. Clause 57
therefore permits an authorised person to enter without identifying
himself or herself or announcing their purpose in specific
circumstances where immediate entry is necessary to ensure human
safety or effective execution of the warrant. This allows
flexibility in serious situations but does not undermine the
importance of identification and the authorised person still is
obliged to provide identification as soon as practicable after
entry, if an occupier or their representative is
present.

Clause 58: Authorised person to be in possession of
warrant

96.
Clause 58 requires an authorised person to possess the warrant
issued by the issuing officer, or the form of the warrant completed
by the authorised person, permitting entry to premises. An
authorised person who does not possess a warrant or copy of the
warrant is not permitted to enter premises as authorised by the
warrant, and is not permitted to exercise warrant
powers.

Clause 59: Details of warrant etc. to be given to
occupier

97.
Clause 59 requires an authorised person to provide a copy of a
warrant to the occupier of premises entered under warrant, or an
occupier’s apparent representative, if either is present, and
to inform the person about their rights and obligations in relation
to a warrant. This obligation ensures that occupiers and
representatives that are present when a warrant is executed are
granted an opportunity to examine the warrant and are explicitly
informed about their rights and obligations.

Clause 60 Completing execution after temporary
cessation

98.
An investigation warrant usually will cease to have effect if the
authorised person and all persons assisting the execution of the
warrant cease the execution and leave the premises. This ensures
that a search is conducted in a timely fashion and that a warrant
does not authorise an authorised person to search a premises on
multiple occasions from time to time.

99.
However, some flexibility is required to ensure that an authorised
person can leave the premises if required, for example to fetch
necessary equipment or avoid a dangerous situation. Clause 60
therefore provides that an investigation warrant, which is still in
force according to the terms of the warrant, does not cease to have
effect if the authorised person and all persons assisting are
absent from the premises for:

a.
one hour or less in any situation other than an
emergency

b.
for twelve hours in an emergency situation

c.
for longer than 12 hours where the occupier consents in writing;
or

d.
where an issuing officer considers there are exceptional
circumstances that justify authorising a longer period than 12
hours (e.g. the emergency preventing the execution of the warrant
continues for more than 12 hours).

Clause 61: Completing execution of warrant stopped by court
order

100.
Clause 61 provides that a warrant that is stopped by court order
and if later revoked or reversed may be executed without a new
warrant needing to be issued if still in force,.

Clause 62: Compensation for damage to electronic
equipment

101.
Clause 62 clarifies that a person is entitled to compensation for
damage to electronic equipment operated during the course of an
inspection. It recognises the fact that powers to operate
electronic equipment under Division 3 do not excuse damage caused
by a lack of care.

Division 4—Occupier’s rights and
responsibilities

Clause 63: Right to observe execution of
warrant

102.
Clause 63 clarifies the right for occupiers of premises and their
apparent representatives, who are present when a warrant is
executed, to observe the execution of any warrant on their
premises. This right does not limit how the warrant may be executed
or require an occupier to witness all of an authorised
person’s activities, but does recognise that a person should
not be excluded during the execution of a warrant unless they
attempt to obstruct the inspection.

103.
Occupiers and representatives that are present when a warrant is
executed must be made aware of their rights under clause
59.

Clause 64: Responsibility to provide facilities and
assistance

104.
Clause 64 imposes an obligation on occupiers of premises, and their
apparent representatives, to provide reasonable facilities and
assistance required to effectively carry out warrant powers. This
obligation recognises that investigation powers are authorised by
issuing officers for the purpose of determining whether laws are
being complied with and should not be obstructed. Failure to
provide reasonable assistance and facilities when requested carries
a penalty of 30 penalty units.

105.
Occupiers and representatives that are present when a warrant is
executed must be made aware of their obligations under clause
59).

Division 5—General provisions relating to
seizure

Clause 65: Copies of seized things to be
provided

106.
If an authorised person seizes a storage device, document or other
thing that can be readily copied while exercising investigation
powers, clause 65 permits the occupier of premises, or a person who
represents the occupier, to request a copy of the seized thing.
Clause 65 ensures that a person can, for example, retain a copy of
seized material for their own records or use.

Clause 66: Receipts for seized things

107.
To ensure a record of seizure is maintained and available to the
person from whom material is seized, clause 66 requires an
authorised person to give a receipt for any thing that is seized
when exercising investigation powers.

Clause 67: Return of seized things

108.
The Bill authorises seizure of material only for specific reasons
and does not permit material to be retained indefinitely. Clause 67
therefore requires the relevant chief executive to take reasonable
steps to return to the owner, or the person from whom it was
seized, any thing seized under the Bill. The relevant chief
executive must act on this obligation within 60 days, or before 60
days if the seized thing is not required for evidence or the reason
the thing was seized is no longer relevant.

109.
The obligation to return seized material may at times conflict with
other priorities, so clause 67 clarifies that the requirement to
return seized material does not apply in certain circumstances
including where a court has ruled to the contrary, where seized
material is subject to forfeiture or a dispute over ownership, or
where the material is being used as evidence in unfinished legal
proceedings.

Clause 68: Issuing officer may permit a thing to be
retained

110.
To ensure the sixty-day limit for retaining seized material does
not prejudice ongoing investigations or legal proceedings, clause
68 permits an issuing officer to issue an order extending the
period a thing may be retained, up to a maximum period of three
years. Clause 68 requires the relevant chief executive to make
reasonable attempts to identify all persons with an interest in the
items that may be retained, and notify them of the application
wherever practicable, to ensure that persons with an interest in
seized material have an opportunity to respond to the proposal to
retain the item(s) for more than 60 days.

Clause 69: Disposal of things

111.
If the relevant chief executive is unable to return seized material
as required by clause 67 because return is refused or the person to
whom the item should be returned cannot be located, clause 69
permits the relevant chief executive to dispose of the seized
material.

Clause 70: Compensation for acquisition of
property

112.
To ensure constitutional validity of acquisition powers, and to
protect people against unjust acquisitions under this Part, clause
70 requires the Commonwealth to pay reasonable compensation if the
operation of the Part would result in an acquisition of property
otherwise than on just terms. Where the Commonwealth and a person
disagree over the amount of the compensation, the person may take
the matter to the Federal Court, or another court of competent
jurisdiction, to determine reasonable compensation.

Division 6—Investigation warrants

Clause 71: Investigation warrants

113.
While monitoring powers under Part 1 are available to determine
whether the Bill is being complied with, investigation powers are
available where an authorised person has reasonable grounds to
suspect that premises contain evidence of contravention of the
Bill. Clause 71 sets out the procedure for obtaining an
investigation warrant and the mandatory content of such
warrants.

Clause 72: Investigation warrants by telephone, fax
etc.

114.
In some circumstances an authorised person may urgently require an
investigation warrant, for example, where the authorised person has
secured material for 24 hours under this Bill or where the time
taken to obtain a warrant may result in evidential material being
altered or disposed of. Clause 72 therefore sets out the procedures
by which an investigation warrant may be obtained from an issuing
officer by means of electronic communication and a number of
controls to ensure this form of warrant is valid and not
misused.

Clause 73: Authority of warrant

115.
The copy of a warrant made in accordance with clause 71 is not
physically the warrant made by an issuing officer. Clause 73
ensures that the form of warrant completed by an authorised person
has the same authority as a warrant completed by the issuing
officer (if all legal requirements are complied with). This is to
prevent any argument over the validity of a form of warrant
completed and presented by an authorised person. Also to prevent
arguments over validity, clause 73 directs a court to assume that a
warrant completed by an authorised person is not authorised if the
counterpart warrant signed by the issuing officer cannot be
produced in legal proceedings.

Clause 74: Offence relating to warrants by telephone, fax
etc.

116.
To discourage and punish any misuse of warrants obtained by
electronic communication, clause 74 establishes an offence
punishable by two years’ imprisonment for a range of conduct
by an authorised applicant in respect of investigation
warrants.

Division 7—Extension of periods in which things
secured

Clause 75: Extension of periods in which things
secured

117.
Clause 75 provides the situations in which an issuing officer may
grant an extension to the 24 hour period in which a thing can be
secured by authorised persons. An extension of the period may be
ordered if further information is provided to the issuing officer
demonstrating that the extension is necessary to prevent evidential
material being destroyed, altered or interfered with.

118.
Clause 75(4) outlines what must be included in an order for
extending the period in which a thing is secured.

Division 8 - Powers of issuing officers

Clause 76: Powers of issuing officers

119.
Clause 76 provides that the officers empowered to issue warrants or
exercise other powers under the Bill, defined as ‘issuing
officers’ in clause 4, act in their personal capacity and do
not represent the court when deciding applications under the Bill.
Issuing officers are granted the protection and immunities of the
court and members of the court when exercising these powers. This
recognises that issuing a warrant is an executive function and not
an exercise of judicial power.

Division 9 - Identity Cards

Clause 77: Identity Cards

120.
Authorised persons are required to return identity cards when they
cease their role as authorised persons. Clause 77 requires the
relevant chief executive to issue all authorised persons with photo
identity cards an identity card to an authorised person in the form
provided under subclause 77(2). The identity
cards must be carried by authorised persons at all times they are
acting in that official capacity (subclause 77(6)).

121.
Clause 77(3) requires authorised persons to return identity cards
when they cease their role as authorised persons. This
obligation is supported by an offence of strict liability
punishable by one penalty unit for authorised persons who fail to
return identity cards within 14 days after ceasing that role unless
the identity card is lost or destroyed.

Part 4—Civil Penalty Provisions

Division 1—Outline and operation of this
Part

Clause 78: Simplified outline

122.
Clause 78 provides that Part 4 defines civil penalty provision,
some rules of general application in relation to civil penalty
provision and a framework for their use in enforcing civil penalty
provisions. Civil penalty orders may be sought from a court in
relation to contraventions of civil penalty provisions.

123.
Part 4 provides that a triggering Act or regulation must make this
Part enforceable in order for the Part to operate.

Clause 79: Purpose and operation of this
Part

124. Clause 79
provides a simplified outline of Part 8 of the Bill, which governs
enforcement of the Bill by way of civil and criminal proceedings,
infringement notices, publicising contraventions, enforceable
undertakings, and injunctions.­

125.
Subclause 79(2) clarifies that a civil penalty provision must be
made enforceable under this Part for this Part to
operate.

Clause 80: Civil penalty provisions

126.
Clause 80 describes which clauses of a triggering Act or regulation
are civil penalty provisions. These are enforceable by civil
penalty orders and certain other remedies under the Act.

Clause 81: Enforceable civil penalty
provisions

127.
Clause 81 provides the basis for enforcing civil penalty provisions
under this Part if a triggering Act or regulation provides
so.

Clause 82: Authorised applicant

128.
Clause 82 provides that a person is an authorised applicant for the
purpose of exercising various powers, performing incidental
functions or duties under this Part if a triggering Act or
regulation provides so.

129.
Subclause 82(3) provides that a triggering Act or regulation may
nominate a specified class, or provide authority to another person
to specify that a person or specific class, is an authorised
applicant for the purposes of this Part.

Clause 83: Relevant court

130.
Clause 83
clarifies that a court is a relevant court for the purposes of
exercising powers under this Part only if a triggering Act or a
regulation provides so.

Clause 84: Matters to be provided by legislative
instrument

131.
Clause 84 outlines that a legislative instrument may provide that a
civil penalty provision is enforceable under this Part or that a
person is an authorised applicant or a relevant chief executive
under this Part only if the power to do so is given under another
Act.

Division 2—Obtaining a civil penalty order

Clause 85: Civil penalty orders

132. Clause
85 provides for a n authorised
applicant to apply for a civil penalty order to remedy an alleged
breach in a triggering Act or regulation’s civil penalty
provisions, and sets out the procedures for the authorised
applicant applying for, and the court issuing, civil penalty
orders.

Clause 86: Civil enforcement of penalty

133.
Clause 86 provides that a civil penalty order is a debt owed to the
Commonwealth, enforceable through civil debt proceedings and can be
a judgment debt. Where a person fails to pay the amount specified
in the order, the agency may commence legal proceedings against the
person named in the order to recover the amount owed.

Clause 87: Conduct contravening more than one civil penalty
provisions

134.
Clause 87 clarifies that a person’s conduct may contravene
more than one provision under the triggering Act or regulation. An
authorised applicant may institute proceedings relating to any or
all provisions allegedly contravened by a person‘s conduct,
although a person may only be held liable for one pecuniary penalty
for the same conduct.

Clause 88: Multiple contraventions

135.
Clause 88 clarifies that a relevant court may issue a single
penalty for multiple contraventions of the civil penalty provisions
of the Bill and is not required to issue separate penalty
instruments. This provision is intended to minimise court
administration and consolidate legal proceedings.

136.
Clause 88 provides that a relevant court will be specified in the
triggering Act or regulation.

Clause 89: Proceedings may be heard
together

137.
Clause 89 clarifies that a court may hear two or more proceedings
for civil penalty orders simultaneously. This will streamline the
process for civil proceedings, remove the need for a person to be
subject to multiple proceedings, and thereby reduce legal costs for
the person and the Commonwealth.

138.
Clause 90 clarifies that civil rules of evidence and procedure
apply when hearing proceedings for civil penalty orders. This
clause ensures that criminal rules of evidence and procedure are
not applied during proceedings for civil penalty orders.

Division 3—Civil proceedings and criminal
proceedings

Clause 91: Civil proceedings after criminal
proceedings

139.
Clause 91 provides that a court cannot issue a civil penalty order
against a person who has previously been convicted of a criminal
offence for the same conduct.

Clause 92: Criminal proceedings during civil
proceedings

140.
Clause 92 stays civil proceedings if criminal proceedings exist and
relate to the same conduct, to prevent any information that arises
during criminal proceedings prejudicing civil proceedings. If the
criminal proceedings result in a conviction, clause 92 will ensure
that civil proceedings related to the same conduct are dismissed
and costs for the civil proceedings are not awarded.

Clause 93: Criminal proceedings after civil
proceedings

141.
Clause 93 clarifies that criminal proceedings may commence after
civil proceedings, even in the event the civil proceedings result
in a civil penalty order. This recognises the importance of
criminal proceedings and criminal penalties in dissuading and
sanctioning contraventions of the triggering Act or regulation and
ensures that criminal remedies are not precluded by earlier civil
action.

Clause 94: Evidence given in civil proceedings not admissible
in criminal proceedings

142.
Clause 94 provides that evidence given by an individual during
proceedings for a civil penalty order cannot be used in any
criminal proceedings, against the same individual relating to the
same conduct. This ensures that information or documents produced
during civil proceedings are not relied upon to support subsequent
criminal proceedings, unless they are criminal proceedings relating
to falsifying evidence in civil proceedings. While it is
appropriate to allow criminal proceedings after civil proceedings
have ended, given the overriding importance of the criminal justice
system, criminal proceedings not related to falsifying evidence
must rely upon evidence gathered during independent investigations,
not evidence from prior civil proceedings.

Division 4—Miscellaneous

Clause 95: Ancillary contravention of civil penalty
provisions

143.
Clause 95 supports the enforcement regime by ensuring that conduct
ancillary to the contravention of a civil penalty provision is
considered to be contravention of the provision itself. Ancillary
conduct includes any attempt to contravene a provision that does
not succeed, aiding or inducing a contravention of a civil penalty
provision, and any conspiracy to contravene a civil penalty
provision.

Clause 96: Continuing contraventions of civil penalty
provisions

144.
Clause 97 clarifies that certain actions are considered to be
repeated contraventions of the Bill. The clause ensures that a
civil obligation under the Bill to do something by a certain
deadline continues until it is done, and is not discharged by
failing to meet the deadline. The clause also provides that a
separate contravention of the civil penalty provisions is incurred
for every day the obligation is not met. This is necessary to
ensure that failure to comply with obligations under the Bill does
not excuse a person from meeting those obligations.

Clause 97: State of mind

145.
Clause 97 provides that it is not necessary to prove a person's
intention, knowledge or other fault elements in civil penalty
proceedings under this Bill. This principle applies only to
proceedings for contravention of civil penalty provisions, not for
ancillary contravention of civil penalty provisions.

Clause 98: Mistake of fact

146.
Clause 98 provides that a person cannot be held liable for a civil
penalty order if their actions arose from a legitimate mistake of
fact. This clause is significant because of clause 97 stating that,
in these types of proceedings, it is unnecessary to prove
intention, knowledge or other fault elements. This has an
effect on civil proceedings similar to the effect strict liability
has on criminal proceedings. To ensure that clause 97 does not
result in liability for simple errors of fact, clause 93 provides a
‘defence’ to civil penalty proceedings on the grounds
that a person‘s conduct was the result of a considered but
reasonable error of fact.

147.
The person who asserts that a particular course of action resulted
from a mistake of fact has the burden of proving the
matter.

149.
Clause 100 provides that a body corporate is responsible for the
actions of an employee, agent or officer of a body corporate,
acting in the legitimate scope of their employment.

Part 5—Infringement notices

Division 1—Outline and operation of this
Part

150.
An infringement notice is a notice of a pecuniary penalty imposed
on a person by statute setting out particulars of an alleged
offence. It gives the person to whom the notice is issued the
option of either paying the penalty set out in the notice to
expiate the offence or electing to have the matter dealt with by a
court. The notice also specifies the time and method for payment
and the consequences if the person to whom the notice is issued
fails to respond to the notice either by making payment or electing
to contest the alleged offence.

151.
Infringement notices are administrative methods for dealing with
certain breaches of the law and are typically used for low-level
offences and where a high volume of uncontested contraventions is
likely. Offences subject to infringement notices are generally of
strict or absolute liability and with a clear physical element.
Infringement notices are often used as a low cost and efficient
means by which regulators can deal with minor offences and for
wrongdoers to discharge their obligation without appearing before a
court.

Clause 101: Simplified outline

152.
Clause 101 provides
a framework for the use of infringement notices in the enforcement
of provisions. Infringement notices can be issued in relation to a
breach of an offence provision or a civil penalty provision and a
person who is given an infringement notice can choose to pay a
specified amount. If the person chooses otherwise, proceedings can
be brought against the person in relation to the
contravention.

153.
Part 5 provides that a triggering Act or regulation must make this
Part enforceable in order for the Part to operate.

Clause 102: Purpose and operation of this
Part

154.
Clause 102 outlines the purpose of this Part which is to create a
framework for the use of infringement notices.

155.
Subclause 102(2) provides that a triggering Act or regulation must
be made enforceable under this Part for this Part to
operate.

157.
Clause 104 provides that a person is an infringement officer for
the purpose of exercising various powers, performing incidental
functions or duties under this Part if a triggering Act or
regulation provides that the person is an infringement officer in
relation to that provision.

158.
Subclause 104(3) provides that a triggering Act or regulation may
nominate a specified class, or provide authority to another
authorised person to specify that an officer or specific class, is
an infringement officer for the purposes of this Part.

159.
The Drafting Direction provides that an authorised person means an
APS employee or an officer of a State or Territory.

Clause 105: Relevant chief executive

160.
Clause 105 provides that a person is the relevant chief executive
for the purpose of exercising various powers, performing incidental
functions or duties under this Part if a triggering Act or
regulation provides so.

161.
Subclause 105(3) provides that a triggering Act or regulation may
nominate a specified class, or provide authority to another person
to specify that a person or specific class, is the relevant chief
executive for the purposes of this Part.

Clause 106: Matters provided for by legislative
instrument

162.
Clause 106 provides that, only if the power to do so is given under
another Act, can a legislative instrument provide that a provision
is enforceable under this Part or that a person is an authorised
person or a relevant chief executive under this Part.

Division 2—Infringement notices

Clause 107: When an infringement notice may be
given

163.
Subclause 107(1) empowers an infringement officer to issue an
infringement notice where the infringement officer has reasonable
grounds to believe a person has contravened a civil penalty
provision under the Bill. Infringement notices provide a simpler
and faster remedy to suspected contravention of the Bill than
formal civil or criminal proceedings.

164.
An infringement notice must be issued within 12 months of an
alleged contravention being committed. An infringement issued later
than this is invalid and cannot be enforced.

165.
To ensure the reasons for each notice are clear, a separate
infringement notice must be issued for each alleged contravention
of the Bill, unless the contravention relates to an action that
should have been completed before a particular time and the ongoing
failure to complete the action constitutes multiple contraventions
(see subsection 4K(2) of the Crimes Act 1914 for continuing
offices and clause 96 of this Bill for continuing contraventions of
civil penalty provisions).

166.
Subclause 107(5) clarifies that an infringement notice must relate
as an offence provision where it can constitute both a civil
penalty provision and an offence provision.

Clause 108: Matters to be included in an infringement
notice

167.
Clause 108 specifies a range of matters that must be included in
each infringement notice. This includes a statement that if the
infringement notice is paid within 28 days of it being issued, this
does not constitute an admission of guilt but does preclude any
further liability or proceedings related to the alleged
contravention (unless the notice is subsequently
withdrawn).

168.
Subclause 108(2) limits the amount payable under an infringement
notice to one-fifth of the penalty that a court could impose in
relation to the alleged contravention. This ensures that
infringement notices, which do not reflect a court sanction or
constitute an admission of guilt, remain a lesser remedy to alleged
contraventions of the Bill.

Clause 109: Extension of time to pay
amount

169.
To ensure that person who wishes to pay an infringement notice is
not prevented from doing so by financial hardship or other
difficulties, clause 109 allows a person who has received an
infringement notice to apply to the relevant chief executive for an
extension of time to pay the infringement notice.

Clause 110: Withdrawal of an infringement
notice

170.
A person who receives an infringement notice may elect to challenge
the notice rather than pay it. Clause 110 therefore sets out
processes for withdrawing infringement notices and provides
guidance as to what information the relevant chief executive must
and may take into account in considering whether to withdraw an
infringement notice.

171.
A person may apply for a notice to be withdrawn even if they have
already paid the amount specified in the infringement notice. If
the notice is withdrawn the amount paid must be
refunded.

Clause 111: Effect of payment of amount

172.
Clause 111 ensures that paying an infringement notice discharges
all liability for the alleged contravention, without constituting
an admission of fault. This is appropriate for an administrative
remedy that may be discharged without legal advice or adjudication
by the courts. However, payment does not discharge liability if the
notice is subsequently withdrawn and the amount refunded. In this
sense, withdrawing a notice acts as if the notice was never
issued.

Clause 112: Effect of this part

173.
Clause 112 clarifies that Division 2, Part 5 of the Bill, dealing
with infringement notices, does not make infringement notices a
mandatory response to a suspected contravention - they remain a
discretionary remedy. Division 2 Part 5 also does not limit the
option to take enforcement action in other ways, limit liability in
any way unless an infringement notice is paid, and does not limit a
court’s ability to determine the amount of a penalty if a
person is found to have contravened a civil penalty provision
enforceable under Division 2 (except when an infringement has been
paid).

Part 6—Enforceable Undertakings

Division 1—Outline and operation of this
Part

Clause 113: Simplified outline

174.
Clause 113 permits offence provisions and civil penalty provisions
to be enforced by way of undertakings under Division 4, Part 8 of
the Bill. This contrasts with infringement notices, which
only may be used to enforce civil penalty
provisions.

175.
Part 6 provides that a triggering Act or regulation must make this
Part enforceable in order for the Part to operate.

Clause 114: Purpose and operation of this
Part

176.
Clause 114 outlines the purpose of this Part which is to create a
framework for the acceptance and enforcement of
undertakings.

177.
Subclause 114(2) provides that a triggering Act or regulation must
be made enforceable under this Part for this Part to
operate.

Clause 115: Enforceable provisions

178.
Clause 115 provides the basis for enforcing a provision with
undertakings if a triggering Act or regulation provides that the
provision is enforceable.

Clause 116: Authorised person

179.
Clause 116 clarifies that a person is an authorised person for the
purpose of exercising various powers, performing incidental
functions or duties under this Part if a triggering Act or
regulation provides so.

180.
Subclause 116(3) provides that a triggering Act or regulation may
nominate a specified class, or provide authority to another person
to specify that a person or specific class, is an authorised person
for the purposes of this Part.

Clause 117: Relevant court

181.
Clause 117 clarifies that a court is a relevant court for the
purposes of exercising powers under this Part if a triggering Act
or a regulation provides so.

Clause 118: Matters provided for by legislative
instrument

182.
Clause 118 provides that, only if the power to do so is given under
another Act, can a legislative instrument provide that a provision
is enforceable under this Part or that a person is an authorised
person or a relevant chief executive under this Part.

Division 2—Accepting and enforcing
undertakings

Clause 119: Acceptance of undertakings

183.
Clause 119 enables an authorised person to accept written
undertakings committing a person to particular action (or inaction)
in order to prevent or respond to a breach of an enforceable
provision. Undertakings are enforceable in their own right (see
clause 115) and they may be entered into instead of, or in addition
to, the authorised person taking other disciplinary
action.

184.
Undertakings provide a remedy other than financial sanctions to
past or prospective breaches of the Bill.

185.
Under clause 119(3), the person giving the undertaking may vary or
withdraw it at any time, if the authorised person gives written
consent to the variation or withdrawal. The authorised
person’s consent to vary or withdraw an undertaking may be
cancelled by the authorised person at any time, with written notice
to the person.

186.
Subclause 119(4) states that consent given under clause 119 is not
a legislative instrument. This is to assist readers to understand
the status of consent given under clause 119; it does not meet the
meaning of legislative instrument under section 5 of the
Legislative Instruments Act 2003 , and is not intended as an
exemption from that Act.

Clause 120: Enforcement of undertakings

187.
Clause 120 enables the authorised person to apply to have
undertakings given under clause 119 enforced in courts. Clause 120
also lists the orders a court can impose to remedy a breach of an
undertaking, including orders to comply with the undertaking, to
pay a pecuniary penalty to the Commonwealth, to compensate other
people, or any other order the court sees fit.

Part 7—Injunctions

Division 1—Outline and operation of this
Part

Clause 121: Simplified outline

188. Clause 121
provides that both offence provisions and civil penalty provisions
in Parts 3 and 5 of the Bill are enforceable by way of
injunctions.

189.
Part 7 provides that a triggering Act or regulation must make this
Part enforceable in order for the Part to operate.

Clause 122: Purpose and operation of this
Part

190.
Clause 122 provides that the purpose of this Part is to create a
framework for the use of injunctions.

191.
Subclause 122(2) clarifies that a triggering Act or regulation must
be made enforceable under this Part for this Part to
operate.

Clause 123: Enforceable provisions

192.
Clause 123 provides the basis for enforcing a provision with
injunctions if a triggering Act or regulation provides that the
provision is enforceable.

Clause 124: Authorised person

193.
Clause 124 explains that a person is an authorised person for the
purpose of exercising various powers, performing incidental
functions or duties under this Part if a triggering Act or
regulation provides so.

194.
Subclause 124(3) provides that a triggering Act or regulation may
nominate a specified class, or provide authority to another person
to specify that a person or specific class, is an authorised person
for the purposes of this Part.

Clause 125: Relevant court

195.
Clause 125 provides that a court is a relevant court for the
purposes of exercising powers under this Part if a triggering Act
or a regulation provides so.

Clause 126: Matters provided for by legislative
instrument

196.
Clause 126 provides that, only if the power to do so is given under
another Act, can a legislative instrument provide that a provision
is enforceable under this Part or that a person is an authorised
person or a relevant chief executive under this Part.

Division 2—Injunctions

Clause 127: Grant of injunctions

197.
Clause 127 empowers the court to grant injunctions on application
by an authorised person. A court can issue injunctions to prevent a
person engaging in particular conduct and injunctions to compel a
person to engage in particular conduct if the court is satisfied an
injunction is necessary or desirable to respond to, or prevent, a
contravention of an enforceable provision.

Clause 128: Interim injunctions

198.
In some cases, an interim injunction may be required to prevent or
require certain action while injunction proceedings are carried
out. Clause 128 therefore enables the court to grant an interim
injunction while it is considering an application for an injunction
under Clause 127. A court cannot require the applicant to give an
undertaking as to damages as a condition of the interim injunction
and refusing to give an undertaking in respect of damages is not
grounds for refusing to grant an interim injunction.

Clause 129: Discharging or varying injunctions

199.
Clause 129 provides that injunctions can be varied or discharged by
a relevant court.

Clause 130: Certain limits on granting injunctions not to
apply

200.
Clause 130 provides that a court can issue an injunction to prevent
conduct or require a person to engage in specified conduct whether
or not the specific conduct is occurring, has occurred in the past,
or is likely to give rise to damages. This ensures a court can
prevent or require conduct to uphold the purposes of the Bill
without having to wait for countervailing conduct to
occur.

Clause 131: Other powers of a relevant court
unaffected

201.
Clause 131 clarifies that injunction powers under Division 2 Part 7
of the Bill are additional to, not in replacement of, any other
powers of the court.

Part 8—General provisions

Clause 132: Regulations

202.
Clause 132 provides a general regulation making power that will
permit the Governor-General to make regulations required or
permitted by the Bill, or necessary or convenient to give effect to
the Bill.